Bradley M. Kuhn's Letter to the FOSS Development Community
Regarding Microsoft's Patent Promise

Last Thursday, Novell and Microsoft announced a new collaborative effort
involving both licensing and technology. The Software Freedom Law Center
has been following the situation, and as its CTO, I've held a particular
interest in how it will impact Free Software developers. One result of
the agreement, Microsoft's patent pledge to developers, has received
significant interest from the Free and Open Source Software (FOSS)
development community.

A careful examination of Microsoft's Patent Pledge for Non-Compensated
Developers reveals that it has little value. The patent covenant only
applies to software that you develop at home and keep for yourself; the
promises don't extend to others when you distribute. You cannot pass the
rights to your downstream recipients, even to the maintainers of larger
projects on which your contribution is built.

Further, to qualify for the pledge, a developer must remain unpaid for
her work. Experience has shown that many FOSS developers eventually
expand their work into for-profit consulting. Others are hired by
companies that allow or encourage Free Software development on company
time. In either situation, Microsoft's patent pledge is voided for that
developer.

Even if the patent pledge were to have some use aside from these
problems, our community simply could not rely on it, since Microsoft has
explicitly reserved the right to change its terms at any time in the
future. A developer relying on the pledge could wake up any day to find
it revoked. She'd have to cease development on her non-commercial and
(mostly) non-distributable modifications that were previously subject to
the covenant.

In short, the pledge applies precariously to developers who work in a
vacuum: those who write original software in their spare time, receive no
payment for it, and do not distribute it to anyone under the GNU GPL.
It's worse than useless, as this empty promise can create a false sense of
security. Don't be confused by the illusion of a truce; developers are no
safer from Microsoft patents now than they were before. Instead,
Microsoft has used this patent pledge to indicate that, in their view, the
only good Free Software developer is an isolated, uncompensated,
unimportant Free Software developer.

Bradley M. Kuhn has served as CTO of SFLC since its inception. He
previously served as the Executive Director of the Free Software
Foundation (FSF), and has contributed to many Free Software
development projects.